For one of 4Front’s recent podcasts, I talked to medical professionals about the intersection of the healthcare and marijuana industries. After discussing the issues that medical professionals in the marijuana industry face, I wondered about the special case of pregnant women. What do marijuana business owners need to know about serving patients who also happen to be new or soon-to-be mothers?

Opinions about the best course of action for pregnant patients considering marijuana vary widely, even among doctors and researchers who specialize in the therapeutic use of marijuana. This makes sense, as peer-reviewed research on prenatal exposure to marijuana is very limited. And what little data we do have is complicated because the relationship between prenatal marijuana exposure and possible effects on the child is potentially conflated by several demographic factors (such as socioeconomic status, race, maternal age, and prenatal care). Given the limited data, some medical professionals make it a blanket policy not to issue medical marijuana recommendations to any pregnant or breastfeeding women; others weigh the risks and benefits on a case-by-case basis.

But for pregnant women who face the question of whether to use medical marijuana, considering any physical risk is just the beginning. Potentially even more serious is the legal risk facing an expecting mother. This is of particular concern for 4Front, as we promote sensible regulation.

I personally faced this dilemma a few years ago when I was diagnosed with hyperemesis gravidarum (HG), a pregnancy complication involving unrelenting nausea and vomiting, rapid weight loss, and potentially life-threatening nutritional deficiencies.

In my case, my doctor prescribed three pills a day of Zofran, an antinausea drug used to treat patients in chemotherapy and commonly prescribed off-label for pregnant women. I didn’t want to take it, and I knew from my history as an advocate interacting with cancer patients that medical marijuana can be an effective antinausea treatment. And I live in a state where doctors can recommend marijuana for debilitating conditions. But this was the point where I encountered the dilemma which all pregnant potential medical marijuana patients must face: what legal risks would I be taking?

To find out the risks that patients today are facing, I talked to the experts at the Family Law and Cannabis Alliance (FLCA), a clearinghouse which helps people dealing with marijuana policy and family law questions.

“The legal risks that pregnant women and new mothers face are usually based not on science, but on the assumption (despite a lack of scientific evidence) that cannabis use during pregnancy is harmful to the development of the fetus and indicative of the mother’s likelihood to abuse or neglect her child after birth,” Sara Arnold, co-founder of the FLCA, told me.

“The risks can include being drug tested by a prenatal care provider without knowledge or consent, having the test result or self-disclosed use reported to Child Protective Services (CPS), and facing an investigation by CPS for abuse and/or neglect. In some cases, this has even led to removal of the infant from the care and custody of his or her parents,” she explained.

Because child welfare laws are wholly independent of state laws protecting patients, these risks aren’t reduced even if the patient holds a state-legal recommendation from her physician.

“Certainly, the fact that a state has legalized medical marijuana should provide protection to all people equally,” says Lynn Paltrow, executive director of National Advocates for Pregnant Women. “Unfortunately, since the interpretation and application of criminal and civil child welfare laws to pregnant women who use any amount of a controlled substance often has little to do with what any state law actually says, what evidence-based research tells us, or with what is best for children and families, I don’t think that pregnant women and families can rely on legalization of medical cannabis as a guarantee of their rights to liberty or their rights to parent.”

Wading through the legal ramifications of becoming a medical marijuana user is hard enough for all patients, but pregnant women face a particularly difficult set of options. For me, both the physical risk of the pharmaceuticals and the legal risk of marijuana were unacceptable, so I chose to refuse treatment and quit my job until the condition improved. Women for whom medical marijuana is the best option might choose to opt for a home birth to minimize the risk of drug testing by a hospital. But quitting a job or having a home birth are out of financial reach for many women.

And the risk doesn’t end at birth; breastfeeding mothers face the same risk of CPS involvement. According to Jess Cochrane, J.D., of the FLCA, prosecutors in a few states have even used criminal “delivery of a drug to a minor” laws, or similar crimes, to charge women who breastfeed having used marijuana.

Perhaps the first step to helping pregnant women is to unite the marijuana industry and advocacy movement to support the choices they make with their doctors. Marijuana businesses can start by creating a consistent culture respecting the health needs of pregnant women.

But what about legal risks to marijuana businesses or medical professionals who serve pregnant women? The good news is that the FLCA, which assisted about 200 families facing marijuana-related Child Protective Services or family court issues in over thirty states last year, has yet to hear of any cases involving doctors or dispensaries incurring special liability based on recommending or providing medical marijuana to pregnant women.

“But the law is still developing in this area, and it’s important to note that there is proposed legislation in several states that would impose such penalties,” Jess explains. “Colorado and Oregon have bills in this legislative session requiring warning signs at medical marijuana dispensaries and/or retail sales locations, and Colorado’s bill would prohibit medical marijuana dispensaries from providing recommendations for pregnant women [it’s unclear what is meant by ‘recommendation’].”

At the dispensary level, I believe pregnant women should be treated and counseled just like any other patient with a valid doctor’s recommendation. It’s important for dispensary owners to teach their staff that becoming pregnant doesn’t reduce a woman’s bodily autonomy or ability to make their own informed medical decisions in consultation with their physician(s).

Shaleen Title is a lawyer who specializes in marijuana regulations. She helped make history by serving as a consultant and spokesperson for the Colorado Campaign to Regulate Marijuana Like Alcohol, which legalized marijuana for the first time in 2012. Most recently, she directed the Massachusetts office of the national medical marijuana law firm Vicente Sederberg, LLC, providing legal consultation services for medical marijuana businesses. Shaleen has won several awards for her advocacy work and her efforts to bring more women and people of color into drug policy reform, including the Hunter S. Thompson Young Attorney Award and the High Times Freedom Fighter Award.

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